Citation Nr: 1015311
Decision Date: 04/27/10 Archive Date: 05/06/10
DOCKET NO. 09-03 762 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Whether new and material evidence has been received to reopen
a claim for entitlement to service connection for an acquired
psychiatric disorder, claimed as a nervous condition.
REPRESENTATION
Appellant represented by: Tennessee Department of
Veterans' Affairs
ATTORNEY FOR THE BOARD
C. dR. Dale, Associate Counsel
INTRODUCTION
The appellant served on active duty for training (ACDUTRA)
for a period of 28 days from January 14, 1976 to February 11,
1976.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2008 rating action of the
Department of Veterans Affairs Regional Office (RO) in
Nashville, Tennessee.
FINDINGS OF FACT
1. A November 2005 rating decision that denied service
connection for a nervous condition, on the basis that the
condition was not incurred in or aggravated by service, was
not the subject of a perfected appeal.
2. Evidence compiled since the November 2005 rating decision
regarding service connection for a nervous condition is new,
but does not raise a reasonable possibility of substantiating
the claim.
CONCLUSIONS OF LAW
1. The November 2005 rating decision denying service
connection for a nervous condition is final. 38 U.S.C.A.
§ 7105 (West 2002); 38 C.F.R. § 3.104 (2009).
2. New and material evidence sufficient to reopen a
previously denied claim for service connection for a nervous
condition has not been received. 38 U.S.C.A. § 5108 (West
2002); 38 C.F.R. § 3.156(a) (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In a January 1996 rating decision, the RO denied service
connection for a nervous condition and the Veteran perfected
an appeal as to that determination. The Board issued a
decision in January 1999, in which it determined that the
claim for service connection was not well grounded as there
was no competent evidence linking currently diagnosed anxiety
and depression to service. The determination of the Board is
final.
The RO thereafter denied a claim to reopen in a January 2002
rating decision and the Veteran perfected an appeal. In
November 2003, the Board reopened the claim and remanded for
additional development. Once that development was completed,
the Board issued a decision denying service connection for a
psychiatric disorder. The Board noted that the evidence of
record showed diagnoses of malingering, a passive-aggressive
personality disorder, a behavioral disorder (as manifested by
impaired contact with reality, poor self-concept and
anxiety), a generalized anxiety disorder with some possible
depression, mild to borderline mental retardation and a
personality disorder. The Board found that service
connection was not warranted as personality disorders are not
disease or injuries within the meaning of applicable
legislation and as the medical evidence did not indicate that
he had a psychiatric disorder that was related to his
military service. This determination was not appealed to the
Court of Appeals for Veterans Claims nor was a motion for
reconsideration or to revise based on clear and unmistakable
evidence filed. Accordingly, that determination is now
final. See 38 C.F.R. § 20.1100 (2009).
In a rating decision dated in November 2005 the RO reopened
the claim for service connection for a nervous condition but
denied on the merits as the condition was not incurred in or
aggravated by service. The Veteran filed a notice of
disagreement and a statement of the case was issued. In
October 2006 additional medical evidence was received and the
RO issued a supplemental statement of the case (SSOC) in
November 2006. The cover letter to the SSOC informed the
Veteran that if he had not yet filed a formal appeal, he
should do so as soon as possible and that he should read the
instructions accompanying the VA Form 9, particularly the
information about how long he had to file a substantive
appeal. The RO informed him in January 2007 that a
substantive appeal had not been filed and provided him with
appellate rights. The Veteran then attempted to submit
substantive appeals in February 2007 and in June 2007. In
October 2007, the RO notified the Veteran that his
substantive appeal was not timely filed and provided
appellate rights. The Veteran did not appeal the
determination that a timely substantive appeal had not been
filed and therefore the November 2005 rating decision is
final. Even so, applicable law provides that a claim which
is the subject of a prior final decision may be reopened upon
presentation of new and material evidence. See 38 C.F.R. §
3.156.
In a rating decision dated in July 2008 the RO issued a
decision denying service connection for a nervous condition
on the grounds that the evidence submitted was not new and
material. The appellant has appealed.
The Board notes that a change in diagnosis or specificity of
the claim must be carefully considered in determining the
etiology of a potentially service- connected condition and
whether the new diagnosis is a progression of the prior
diagnosis, correction of an error in diagnosis, or
development of a new and separate condition. 38 C.F.R. §
4.13, 4.125 (2008); Boggs v. Peake, 520 F.3d 1330 (Fed. Cir.
2008). In this case, the Veteran's current claim for service
connection for a nervous condition is based on the same
diagnoses and factual bases as the time the case was last
decided on the merits, new and material evidence is necessary
to reopen the claim. Id.
New evidence is defined as existing evidence not previously
submitted to the VA, and material evidence is defined as
existing evidence that, by itself or when considered with
previous evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a).
For the purpose of establishing whether new and material
evidence has been received, the credibility of the evidence,
but not its weight, is to be presumed. Justus v. Principi,
3 Vet. App. 510, 513 (1992).
The evidence of record at the time of the November 2005
rating decision included the appellant's service treatment
records (STRs). A November 1975 enlistment examination
marked the appellant's psychiatric evaluation as normal. A
January 1983 psychological evaluation diagnosed the appellant
with malingering and a passive-aggressive personality
disorder. A May 1991 psychological evaluation diagnosed the
appellant with mild to borderline mental retardation and
personality disorder with avoidant and oppositional features.
Subsequent private and VA medical records reflect periodic
treatment for, and evaluation of, a psychiatric condition
variously diagnosed as a nervous disorder, a behavioral
disorder (as manifested by impaired contact with reality,
poor self-concept, and anxiety), a generalized anxiety
disorder with some possible depression, mild to borderline
mental retardation, and a personality disorder with avoidant
and oppositional features. In an undated letter received in
September 2001, a private physician stated that the appellant
had a nervous condition that was "as likely as not related
to his military service." In a March 2005 letter, another
physician stated that while the appellant had anxiety
disorder that was not specifically caused by his service, it
was more likely than not aggravated and worsened by his
service. During an October 2004 VA examination the appellant
reported that his nervous symptoms began before he entered
service. The examiner diagnosed the appellant with
personality disorder, not otherwise specified with avoidant
and oppositional traits, and mental retardation.
Evidence compiled since the November 2005 rating decision
includes private medical records that diagnosed the Veteran
with anxiety disorder. In March 2008 the appellant testified
before a DRO that he was physically and mentally abused when
he first entered the military.
The evidence submitted continues to show the presence of a
current psychiatric disorder. However, no evidence has been
received to link a current disability to service, which was
the basis for the last denial of the claim. While the
Veteran has testified that he was abused in service, there is
no evidence indicating that a current disability or a
condition that pre-existed service was incurred in or
aggravated by service. Accordingly, the evidence compiled
since the November 2005 rating decision, while new, is not
material to the issue of service connection. The newly
submitted evidence does not link a current nervous condition
to service. The evidence thus does not raise a reasonable
possibility of substantiating the appellant's claim for
service connection. New and material evidence having not
been found, the appellant's request to reopen his claim must
be denied.
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt
of a complete or substantially complete application for
benefits, VA is required to notify the claimant and his
representative of any information and medical or lay evidence
that is necessary to substantiate the claim. 38 U.S.C.A. §
5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio
v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice
must inform the claimant of any information and evidence not
of record (1) that is necessary to substantiate the claim;
(2) that VA will seek to provide; and (3) that the claimant
is expected to provide. 38 C.F.R. § 3.159(b)(1). Notice
which informs the claimant of how VA determines disability
ratings and effective dates should also be provided. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA
notice should be provided to the claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21
(2004).
During the pendency of the appeal the Court issued a decision
in which it held, in part, that VA's duty to notify a
claimant seeking to reopen a claim included advising the
claimant of the evidence and information necessary to reopen
the claim and of the evidence and information necessary to
establish entitlement to the underlying claim for the benefit
sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1
(2006). The Court further held that VA must, in the context
of a claim to reopen, look at the bases for the denial in the
prior decision and respond with a notice letter that
describes what evidence would be necessary to substantiate
the element or elements required to establish service
connection that were found insufficient in the previous
denial. Id. at 9-10.
In a letter dated in April 2008 the appellant was advised of
the information and evidence necessary to reopen his claim
for service connection for a nervous condition, and of the
evidence needed to substantiate the underlying claim for
service connection. He was also advised of the evidence that
VA would seek to provide; and of the information and evidence
that he was expected to provide. He was also informed him of
how VA establishes disability ratings and effective dates.
Dingess/Hartman, 19 Vet. App. 473. To the extent that there
was error in informing the Veteran of the reasons for the
prior denial and the types of evidence that would suffice to
reopen the claim, the error is not prejudicial. The
statement of the case informed him that new and material
evidence had not been submitted because the evidence did not
show a relationship between a current disability and service.
The contents of 38 C.F.R. § 3.156(a) were also set forth.
Accordingly, the Board finds that the appellant has been
provided adequate notice in accordance with 38 U.S.C.A §§
5103, 5103A with regard to his claim for service connection.
Regarding the duty to assist, STRs, VA treatment records, and
private medical records have been obtained and associated
with the claims file. There is no indication that VA has
been informed of the existence of outstanding relevant
evidence. Accordingly, the Board is satisfied that VA has
sufficiently discharged its duty in this matter. Smith v.
Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed.
Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001);
see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
(CONTINUED ON NEXT PAGE)
ORDER
New and material evidence has not been presented to reopen a
claim for service connection for an acquired psychiatric
disorder, claimed as a nervous condition and, therefore, the
appeal is denied.
____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs